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High Court dissent is down

High Court dissent is down

The retirement of “great dissenter” Justice Dyson Heydon early last year has resulted in a decline in disagreements between High Court judges.

Legal academics Dr Andrew Lynch and Professor George Williams from the University of New South Wales analysed all 55 High Court decisions decided by five to seven members of the Bench last year.

The study found that the rate of dissent has dropped dramatically since Justice Heydon and Justice William Gummow retired from the Bench in 2013 and 2012 respectively, to be replaced by Justice Stephen Gageler and Justice Patrick Keane.

Even so, one of the new judges has taken the title of the High Court judge most likely to disagree with his colleagues. Justice Gageler claimed the highest rate of dissent (14%) in 2013 across all matters. This does not, however, compare to Justice Heydon’s rate of dissent, which peaked at 40 per cent in his final two years in the High Court.

Just two extra dissents separated Justice Gageler from Justice Kenneth Hayne (10%) and Justice Virginia Bell (8.7%).

Overall, the High Court achieved unanimous judgements in 21 out of 55 cases (38%), more than double 2012's figure of 13 per cent.

Under the stewardship of Chief Justice French, the High Court recorded unusually high levels of agreement and unanimity among members of the Bench in 2009 and 2010. This consensus broke down in 2011 and 2012, due especially to the approach of Justice Heydon, the study found.

“Significant differences certainly remain between members of the current High Court, both as to their views on the law and their judicial method. However, in 2013 this did not often manifest as differences in determinations. Hence, last year saw a high level of unanimity, along with a low rate of dissent by all members of the Court,” Lynch and Williams wrote.

They added that it was too early to discern any noticeable trends in the decision-making of the two newest Justices.

The study also found that there was just one unanimous opinion in constitutional law cases, an area where agreement is notoriously rare.

The findings of the study, The High Court on Constitutional Law: 2013 Statistics, will be presented at the Gilbert + Tobin Centre of Public Law’s annual Constitutional Law Conference in Sydney today (14 February). The Conference will be followed by dinner at NSW Parliament House hosted by Attorney-General Greg Smith, with guest speaker Federal Attorney-General George Brandis.

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